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Release: Oct. 29, 2002

UI Law Professors Say Sniper Suspects Have Little Room for Defense

The defense attorneys who step forward to defend the two alleged Washington, D.C.-area snipers will have their work cut out for them, according to two professors of criminal law at the UI College of Law.

"At first glance, the evidence does look pretty convincing for their guilt," said Stephanos Bibas, a professor of law.

John Allen Muhammad and John Lee Malvo have both been charged in Virginia and Maryland with numerous counts stemming from a three-week shooting spree around Washington, D.C., that left 10 people dead and three others injured. Police in both states have what they believe to be the gun used as the murder weapon and a car modified to serve as a mobile shooting platform, and have connected Muhammad to several communications the shooter made with law enforcement authorities. The two are also being investigated as possible suspects in unsolved murders in other states.

Despite the evidence, however, both Bibas, a former federal prosecutor, and Margaret Raymond, UI law professor and former criminal defense attorney, said that defense attorneys will have several strategic options for their clients if the case comes to trial.

"It's not an open and shut case because there are no eyewitnesses and without eyewitnesses, a case is never open and shut," said Bibas.

The most obvious strategy would be an insanity defense, but both said that securing such a finding would be tricky. They explained that to secure an acquittal through insanity, the defense would not have to simply prove mental illness, but that the mental illness kept Muhammad and Malvo from understanding their actions were illegal or morally wrong.

"It'll be tough to argue that they didn't know what they were doing was wrong because if you believe what you're doing is OK, you don't hide in a car and shoot people from holes you drilled through the trunk," Raymond said.

Raymond said she believes there may also be what attorneys call "a race to roll," when one of the defendants turns on the other and pleads guilty in exchange for a better deal from prosecutors.

Malvo, 17, might also have an advantage because, as a minor, jurors might feel sympathy for him in a trial and be more open to finding him the victim of some form of duress.

"Malvo could claim that Muhammad dated his mother and was like a father figure to him, and so he exerted some kind of psychological pressure on Malvo to be his accomplice," Bibas said.

Similarly, both could plead guilty in exchange for a sentence lighter than the death penalty. But Raymond and Bibas said that angry public opinion will likely preclude prosecutors from taking the death penalty off the table for both suspects.

Both attorneys pointed to potential deficiencies in evidence as a defense strategy, as well. For instance, they said the mysterious white van that police believed the suspects were driving might be a cause for reasonable doubt because Muhammad and Malvo were arrested in a blue sedan. And while possession of the gun allegedly used to commit the murders incriminates Muhammad and Malvo, it does not prove that either of them necessarily fired the deadly shots.

"An attorney can argue that the government just didn't prove that these were the only two men who could have done the shooting, or that this was the only gun that could have been used in the shooting," Raymond said.

Whatever strategy is used, however, both admit defense will have an uphill fight because of the weight of evidence and public opinion.

"This is post 9-11 America, Muhammad is a Muslim who's apparently made pro-terrorist statements, and he sounds like an angry young man," Bibas said. "I don't see a lot of room for a defense in this case."